Thursday, November 17, 2011

An Occupy Wall Street Constitution?

Things have heated up nationally today with the occupy movements. Obviously these groups have diverse members. Indeed, last night, one of Jon Stewart's "reporters" did a funny story about the supposed class divide within the Occupy Wall Street movement. The highlight was when an I-Pad owning OWS member said he would never just donate his device to a poorer member of OWS, since it was personal property. So my post here is a bit of a thought experiment. Yet I'm wondering what an Occupy Wall Street U. S. Constitution might look like (an OWS draft "manifesto" was circulated at one time, but it was a set of policy recommendations rather than constitutional provisions). The parallel is that various scholars have already started writing about the Tea Party's constitutional views. Of course, there's more to work with on that question since Tea Party members have talked explicitly about their notion of the U.S. Constitution. But let me offer a few initial thoughts.

First, I think an OWS U.S. Constitution would make clear that corporations are not persons. This would facilitate the OWS agenda opposing corporate influence. Second, their constitution might include socio-economic rights provisions, especially regarding employment, education, and welfare. Third, the document might embrace a form of radical de-centralized democracy, though that could be in tension with strong national rights provisions. I wonder what others think. If the occupy movement survives and becomes less divided, perhaps something regarding the constitution might emerge.

P.S. Congrats to Dan and Paul for being quoted earlier this week in a New York Times blog (if my memory is correct)

Caperton v Massey II

In my previous post, I pointed out that Kennedy relied on numerous problematic bald-faced empirical assertions in his majority opinion in Caperton v Massey. I now want to turn my attention to Roberts’ dissent. Unlike Kennedy’s opinion, Roberts’ is much more sensitive to the challenges posed by empirical claims or, perhaps phrased more carefully, by judicial decision-rules built on empirically-verifiable standards. Yet while accurately laying out the difficulties such decision-rules create, Roberts’ dissent is ultimately unsatisfying. The dissent itself relies on numerous unfounded empirical claims, and its final conclusion could even be read as “the Court can’t really do the job it is supposed to do.”

Roberts criticizes Kennedy’s test by listing forty questions trial and appellate judges would need to ask to properly operationalize it. Many of these are legal and doctrinal (scope of discovery, standard of review, etc., etc.), but at least eleven focus on social science questions:

How much money is too much?

How does the source of the contribution (from an individual vs. bundled from many) matter?

Does the amount at stake in the particular case matter?

How long does the “probability of bias” last?

How many issues are implicated? If “disproportionate” funds are used to elect a “tough on crime” judge, from what sort of criminal cases (if any) must the judge recuse himself?

Do judges feel a “debt of hostility” toward opponents of their candidacies?

Does personal friendship between a judge and lawyer give rise to a “probability of bias”?

Should the rule vary from state to state depending on historical baselines of judicial campaign spending?

To the extent causation matters, how do we evaluate the causal link between the donation and the vote?

Does incumbency matter, since incumbents already have an electoral edge?

If the donor supported a different candidate during the primary, does that dilute the “debt of gratitude”?

These are all very tough questions, they are all ultimately empirical (or at least require some data to answer), and in many cases I imagine the data simply aren’t there, at least without some hefty extrapolation to the case at hand.

At the end of his list of concerns, Roberts concludes:

Today’s opinion requires state and federal judges to simultaneously act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?). … The need to consider these and countless other questions helps explain why the common law and this Court’s constitutional jurisprudence have never required disqualification on such vague grounds as “probability” or “appearance” of bias.

In this particular instance, Roberts’ argument may not be particularly problematic. Earlier in his dissent he cites a passage from Tumey v Ohio, in which the Court states:

All questions of judicial qualifications may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.

In other words, the cases that rise to due process violations—direct financial stake in the outcome, say, or presiding over a criminal contempt trial that arose because of the defendant’s earlier actions toward that very judge—seem to come close to the parachutes-save-lives type situations: cases where the empirical assumption, even if unverified, seems so likely to be true that we are okay with the assumption. For all the non-parachute cases, though, the Court can leave the fact-finding to the legislature, which is generally thought to be a better fact-finder than the Court. That seems at least facially reasonable (although I am sometimes skeptical about legislative competence as well).

But. There may arise cases in which the Court has to make the call without being able to defer the non-parachute cases to legislatures or agencies. And in those cases, the nature of Roberts’ argument becomes more problematic. He is basically saying: we are not competent to make political science, economic, and psychological calls, and thus we should not do so. Clearly the latter half of that sentence follows nicely from the first. If you can’t do something, you shouldn’t do it.*

But that first half troubles me. The fact of the matter is that the types of questions the Court faces often force the justices to take on the roles of political scientists, economists, and psychologists. And Roberts is right that Supreme Court consisting of nine justices with no advanced training or practice in any of those fields is not well-suited to tackle that task. But the solution isn’t for the Court to just refuse to do its job—in fact, as I’ll show in a moment, Roberts himself acts like a political scientist and psychologist in this very dissent.

No, the solution must be for the Court to confront its epistemic failings directly. And it strikes me that there are two general avenues to consider. First, the Court could figure out how to become competent in the fields it must be competent in, perhaps by hiring clerks with a wide range of academic training and professional experience in policy- and science-related fields,** or by figuring out a way to bring in outside expertise for guidance (akin to the special masters, independent experts, and technical advisors that federal judges can appoint to assist them with technical issues). Or second, we could significantly restrict the range of cases the Court can hear to just those that involve statutory interpretation, matters of legal doctrine, or other such issues that implicate almost no empirical fact-finding.

(That is, clearly, a beyond-cursory set of proposals. I will be fleshing them out in the posts ahead.)

But to allow the Court to admit it cannot handle social scientific evidence while still allowing it to do seems crazy. If my accountant walked in to a meeting and said “I don’t know how to add or subtract, but let me manage your finances” I would fire him on the spot. Yet at some level that is exactly what Roberts did.

Moreover, twice in the very same opinion, Roberts cannot adhere to the rule he appears to support, namely that the Court should be wary of confronting non-parachute empirical questions. First, he starts off his argument by stating that:

There is a “presumption of honesty and integrity in those serving as adjudicators.” All judges take an oath to uphold the Constitution and apply the law impartially, and we trust that they will live up to this promise. [Here he quotes an older Kennedy opinion, Republican Party of Minn v White: “We should not, even by inadvertence, impute to judges a lack of firmness, wisdom, or honor.”]

The first sentence is quote from Withrow v Larkin, and thus it could be seen as Roberts relying on precedent. But since Withrow doesn’t cite any empirical evidence to bolster its claim, I don’t see why it is entitled to any deference for its empirical statements. But the second sentence is Roberts writing for Roberts, and that sentence is an empirical claim as well. Why should we trust that judges will always be impartial? That’s a remarkably high bar for a human to clear—just consider the research about how people quickly become loyal to randomly-chosen teams or colors.*** Judges are no less human or mortal than the rest of us, and thus equally vulnerable to partiality. Of course, to complicate matters more, it is also possible that institutional pressures or senses of professional identity might help judges be more aware of the risks of partiality. The point is, Roberts’ point of departure is an empirical psychological claim, one baldly made with no empirical support, and one that quickly appears vulnerable.

Roberts then concludes with another unsubstantiated psychological/political science assertion. His concluding paragraph says:

It is an old cliché, but sometimes the cure is worse than the disease. … I believe that opening the door to recusal claims under the Due Process Clause, for an amorphous “probability of bias,” will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts.

Roberts recently criticized legal scholarship for being relatively useless to judges, but it seems like he needs to read a bit more by Tom Tyler. The work by Tom and other social psychologists on “decision acceptance” suggests that parties are more willing to accept decisions that go against their self-interest the more they think the procedures that led to them are fair. Perhaps allowing those concerned about bias to voice their complaints might strengthen their faith in the system, even if they lose, and denying them that hearing could make them more cynical. I don’t know for sure. But I do know two things: (1) Roberts' claim about bias challenges and faith was the very sort of psychological or political science claim he seems to argue the Court should avoid making (just look at the list of criticisms he made about Kennedy’s opinion and note how many apply here); and (2) his claim was empirically naïve.

If you’re still with me, thanks. To just summarize: Roberts’ concerns about the difficult types of questions the Court faces are valid. His fear that the Court is not well equipped to handle these social science questions is completely right. But as his own opinion makes clear, the justices simply cannot avoid these types of issues, no matter how hard they try. So the solution must be to find a better way to do so, not to simply admit incompetence.

* This is a major problem that empirical legal studies faces. Programs like Stata make it far too easy for those with little or no statistical training to run regressions. The resulting papers are often deeply flawed and thus not only fail to advance empirical knowledge, but by muddying up the evidence base actually retard it. That law review editors lack the competency of true peer reviewers to filter out the junk from the non-junk only exacerbates this problem. But that is a complaint for another (and earlier) day.

** I have always found it somewhat incredible that the default for Supreme Court clerks is someone with one year of post-JD experience, and with that experience being clerking for a federal appellate judge. Given the potential importance of Supreme Court opinions, I would like to think that the justices would surround themselves with far more skilled, seasoned assistants.

*** In a post complaining about bald claims, I know I need a cite for this. I have someone looking for it--I know I read this "somewhere"--and I will update this post with the link once I have it.

Fred Schauer, the NYPD needs your help!

For fans of statutory interpretation, legal reasoning and park-dwelling, this story in the NYT about vagueness in Zucotti Park might be of interest. For example, is this person sitting (allowed) or lying down (not allowed)?

Thoughts on "Orwellian"

"Orwellian" has always been a favorite of lawyers and law professors. It appears in no less than 2276 law review pieces (at last check). There are even entire legal conferences devoted to 1984 (I believe that the University of Chicago, for example, organized one a few years ago). And in this useful summary of the recent oral argument in United States v. Jones, about the constitutionality of installing GPS tracking devices to vehicles, Orin Kerr reports having heard the phrase or some reference to 1984 at least 5 times by several Justices. Usually, almost always, "Orwellian" is invoked in response to the perceived threat from technological advances which will allow the government greater capacity to monitor people's movements. And the connotation of the phrase is that there is something at least creepy, and at most dangerous, about permitting the government to watch people's movements too closely.

I've become peeved by this usage.

I don't believe that the term "Orwellian," assuming it is used as a reference to 1984, is principally about government monitoring of private citizens. It's true that Winston Smith has to deal with the telescreen at home, and that there are hidden microphones everywhere to allow the government to spy. I understand the allusion. But I believe it to miss the point.

The real aim of this monitoring has to do with knowing and controlling what is in people's minds, not only to prevent "thoughtcrime" from occurring but to eradicate the possibility of thoughtcrime altogether (this is the upshot of Smith's experience in the Ministry of Love (Miniluv), where he comes to "love" Big Brother after a series of physical and mental tortures, culminating in Room 101). The point is not merely, or even primarily, about watching people. It is about controlling their minds and compelling abject adoration by dominating their thoughts.

Even more than this, 1984 is about the inexorable degradation of language by its close association with the state ("political" writing was not Orwell's favorite). I am not the first to believe that if the book were written today, its target might not have been the state, but linguistic degeneration through the influence of biz-speak or tech-speak, consultant-speak and text-speak. The appendix to 1984 is a discussion of how it is that language can be deliberately simplified and boiled down, and that it was perceived to be the great advance of Newspeak that, unlike all languages before it, it was continually shrinking. Linguistic style, its complication and variety, is connected with human individuality and uniqueness of thought. It is the aim of the state in 1984 to crush that individuality by removing all shades of meaning, all nuance, all manner of degree and particular flavor in vocabulary. By this systematic linguistic impoverishment, people become more docile, as single and ever-contracting words come to signify two opposite meanings (doublethink).

The principal message of 1984 is therefore not about a general sense of creepiness or disquietude when government watches what people do, or even that it is dangerous when government does so. It is about dominating people's minds by stultifying and pruning away their individual manners of thought and verbal expression. "Orwellian" is an apt description of the new orthodoxy of "simple," "plain," "direct" written expression that passes under the Newspeaky term, "good writing," or in legal circles, "effective legal writing." The next time somebody insists that you ought not use a word because it is too ornate, difficult, antique, complex, or unfamiliar, tell them that they are being Orwellian. You will at least have for a moment resuscitated what is an increasingly worn out and moribund metaphor. Orwell himself might approve.

The Gap

According to a survey recently released by the National Association of Women Lawyers, only 47 percent of first and second year law firm associates are women; this shows a drop by one percent from past surveys. Moreover, 55 percent of staff attorneys are women, making staff attorney the attorney position with the highest percentage of female lawyers. Both female partners and female associates lag behind their male counterparts in pay, and the difference largely shows up in the respective bonuses paid to each. Finally, "[t]he majority of large firms have, at most, two women members on their highest governing committee. A substantial number have either no women (11 percent of firms) or only one woman (35 percent of firms) on their highest governing committee."

We know that nearly half of law students are women, so we must question why women are not faring nearly as well in private practice as are their male counterparts. Is actionable discrimination in law firms operating so rampantly and unchecked? Is something more subtle than actionable discrimination at work? Several European countries, aware of the dearth of women at the helm of leadership in industry and other places, have decided that to the extent that the culture of corporate leadership is somehow not welcoming to women or conducive to their success, large scale forced integration is the best way to alter it.

The internet and newspapers are abuzz with recent word of quota requirements implemented in many European countries that are designed to place more women on corporate boards and in other leadership positions. The idea had its genesis in Norway, but Spain, France, Iceland, the Netherlands, Belgium, and Italy are now adopting it, according to reports.

Some are saying that these countries have the right idea-that imposing these quotas and forcing integration to a point where the law and educational and professional pipelines have been unable to take it is a necessary step in the right direction for these countries. Others, opposed to quotas of any kind, feel that the forced nature of the integration will breed more backlash and strife than progress when it comes to equality of opportunity. Quotas are inimical to American attempts-legal and otherwise-to foster equality, integration, and increased access to whom it has historically been denied. Even court mandated or court approved affirmative action plans shy away from the notion of imposing flat out quotas.

So what is to be done here at home? The fact of the matter is that the recently released statistics here in the U.S. are grim, and a more searching look into this widening disparity of opportunity and achievement is clearly warranted, in one way or another. Quotas surely aren't the answer, but the widening rift is growing too big to ignore. We should be looking into why it persists and thinking about what can be done to stem it. Is there a role that law schools and legal education can play?

The second is the webcast of an event we hosted with Jim Blumstein of Vanderbilt law on the constitutionality of the Medicaid expansion requirement under the Affordable Care Act, a separate question on which the Court also granted cert that has thus far garnered less attention.

Wednesday, November 16, 2011

A couple exciting or useful announcements...

Via Bridget at TFL, I just discovered that the American Law Institute has elected a few members of the Prawfs family to join its august ranks. I'm not yet sure what punishment comes with such honor, but in the meantime, join me in wishing a hearty congrats and mazel tov to these newly ascendant folks drawn from the Prawfs family: Orly Lobel (USD), Matt Bodie (SLU), and Dave Hoffman (Temple). Woot!

While I've got Bridget in mind, she relayed to me the other day that during the AALS conference, the Women in Legal Education Section will be hosting a mentoring session open to all men and women. You can read more about that after the jump.

Want to network with other professors but don't know where to start? Willing to share some wisdom or ask questions? Whether you are a new law teacher or an experienced law teacher, please join us for the Section on Women in Legal Education's first-ever "Speed Mentoring" program. After a brief overview, we will divide all program attendees into two groups, based on number of years of attendees' teaching experience. We will then pair experienced faculty members with newer faculty members for facilitated networking sessions. Every 10 minutes, conversation partners will change in a designated order. The program chair will suggest topics for each 10-minute conversation, but pairs are welcome to follow any conversational direction. The goal of this session is to facilitate connections between and among professors across subject matters and viewpoints. Mentees will benefit from the insights and wisdom of more experienced teachers. Mentors will benefit from the fresh perspectives of newer colleagues. All participants will benefit from active listening, exchanging information, sharing experiences and making new connections with national colleagues. At the end of the program, concluding remarks will be followed by free time for open networking. Bring your business cards!

Section officers and the Program Chair confirm that men are very welcome to participate.

Kudos to the Crimson White

This is largely a local matter, so it may be of little interest to others, but I wanted to praise the Crimson White, the University of Alabama's student newspaper. On a variety of issues in the last year, including coverage of last April's tornado and its aftermath and reporting on a student government scandal this year (one in which the university administration has been less than helpful in providing full disclosure of relevant information, relying on an overbroad reading of FERPA), the Crimson White has provided some really superb student journalism on a campus with more than 35,000 undergraduates.

Today and continuing on Thursday, the CW is running a two-part package of articles and editorials on "The Machine," a legendary -- but not mythical -- undergraduate organization at the University of Alabama composed of representatives of the school's powerful Greek system: one that has used secrecy, bloc voting, the threat of expulsion from the group, and, allegedly, intimidation, threats, and boycotts to ensure much more often than not that its candidates, and the interests of the racially segregated Greek system, enjoy an undue dominance in campus student politics. Today's stories, and the editorial from the paper's editor-in-chief, are excellent, and the paper should be commended for doing such good work. You can read them at the paper's web site here. I don't much like posting this during the teaching recruitment season, and I should add that these stories are about undergraduate campus politics and so far as I know have nothing to do with the Law School; but the CW chose to publish these stories now, and I consider myself duty-bound to bring attention to them. Good work, CW.

FantasySCOTUS

From my friend and former colleague Greg Mitchell at Virginia, here is an announcement about FantasySCOTUS, sponsored by the Harlan Institute. The Institute now has teamed up with researchers at UVA and is trying to get lawyers and law professors involved in predicting case outcomes and rating their importance. Incentives for participating, besides ego boost, include a chance to win a $200 Amazon gift certificate each month.

"Owning" Brown and Owning Analogies

Mark's post below about the Parents Involved case and the argument over the meaning of Brown v. Board of Education touches on issues I've been thinking about a bit lately. Mark recounts the argument between what Chief Justice Roberts said in that case about color-blindness being at the heart of the arguments in Brown, and Judge Robert Carter's own argument that Roberts had misunderstood the meaning of the quote offered by Roberts--a quote from Carter himself back in the days of the Brown litigation--and used it to twist Brown on its head. The opinions in Parents Involved, and much of the scholarship that followed, fixated on this question: What is the "true meaning" of Brown? Who gets to claim the "mantle of legitimacy" of Brown, or to call themselves the "true heirs of the plaintiffs' lawyers" in Brown, to use some phrases from the scholarship? There was a distinct sense in at least some of the public reactions to the majority opinion in Parents Involved, including Carter's reaction, that the majority had engaged in a kind of act of cultural and/or historical imperialism or appropriation.

A similar debate is being fought over whether it is appropriate to use the civil rights struggle as an analogy in the gay rights struggle. A famous quote from an abolitionist 19th century preacher, picked up by Martin Luther King and made a central trope in the civil rights struggle, says that the moral arc of the universe is long, but it bends toward justice. The same phrase has become equally important to advocates of same-sex marriage and gay rights. But do they get to "own" that phrase? Many African Americans oppose same-sex marriage and other gay rights, and/or reject the analogy between the two, or argue that whatever the advocates of racial equality had in mind, they certainly didn't have issues of sexuality in mind. Does this community have any special ownership over the historical meaning of their own experience? Do they get some special say over whether the phrases, tropes, and language that sustained them in their own experience get to be applied elsewhere? If current elite figures in the struggle for racial civil rights, as opposed to the laity, also favor equal rights in the area of sexuality, are they entitled to any special consideration in pressing this analogy? To the extent that the gay rights movement is often led by cultural elites (which is not to say that, e.g., all gays and lesbians are wealthy or belong to the cultural elite), is the effort to claim the mantle of the racial civil rights movement any less an act of cultural and. sometimes, racial imperialism than Chief Justice Roberts's use of the Carter quote in Parents Involved?

I don't mean to press the likeness between these two issues too far. Of course there are distinctions; there are always distinctions, and lawyers are fond of making them. (But then, the Devil is fond of quoting Scriptures.) I suppose I have three conclusions. 1) I can understand why debates over legacies, meanings, ownership, and so on have special emotional resonance for some people, even if I don't generally share that inclination. 2) There is still something somewhat odd and counter-productive about the whole debate. No one owns history, or historical meaning. Moreover, historical meaning is not fixed; it is constantly in flux, constantly a site of contestation. There is never a final answer to the question who "owns" the mantle of some past set of events; ownership is necessarily contested and changes from generation to generation. I don't think the whole debate is just about claiming the rhetorical or moral high ground, although obviously that's a large part of it. More broadly, it represents a classic legal move, one that I think is unfortunate: the tendency to argue about substance in terms that represent anything other than substance itself--to argue over symbolism, or history, or meaning, or analogies, instead of arguing directly about the thing itself. 3) For those who do take these kinds of arguments over legacy seriously, and especially those who think that those involved in the movement for racial equality are entitled to some special say over, or ownership of, the "meaning" of Brown, there are reasons to think seriously about the analogy between racial civil rights and sexual equality. I personally find the analogy persuasive; but then, I don't think Robert Carter has any greater entitlement than Chief Justice Roberts to tell us what Brown "meant," any more than I think the director of a movie has some special entitlement to tell us what her film "really" meant, and which readings of it are acceptable or unacceptable. For those who think Roberts's use of Carter's words was an outrage, or who think the African-American community has a special claim to ownership of the historical meaning of Brown, there are good reasons to be cautious in pressing the analogy between the racial and sexual civil rights movements, or indeed to avoid using it altogether, lest they engage in the same kind of cultural imperialism they saw in Chief Justice Roberts.

Tuesday, November 15, 2011

The Curricular Powder Room?

A female friend who teaches family law recently wryly suggested to me that family law had become "the curricular powder room," in that circa 2011 it is a subject whose teaching and scholarship is dominated by women in the American legal academy. This was not always so. In her work on the development of family law textbooks out of domestic relations courses, my wonderful colleague Janet Halley's What Is Family Law? A Genealogy, Part I and II (the latter is forthcoming) shows that in its early days family law textbook writing was dominated by men, just like all other fields of law, and the female dominance is of fairly recent vintage.

I only dabble in family law with my reproductive technology work, but my experience with the various conferences I attend has led me to believe that the number of heterosexual men who primarily write and teach in the area and have joined the academy in the last 10 years or so is extremely small, and even when I teach family law topics I can feel myself performing my sexuality to some extent as if it were a ritual to get access or credibility. The only other field that I know of which comes close in terms of gender splits, is health law, although here the split feels more like 50/50, which is striking more because of the gender disparity of almost all the other fields in law.

Of course, one reaction to all this is that it is the other legal fields that are the problem in terms of gender skew so far in favor of men, and I am sympathetic to that point, but in this post I am primarily curious about what the ramifications are of family law having become "the curricular powder room"?

Would family law scholarship and teaching be different if more men were involved? Does the female domination of it lead to a kind of reactive devaluation of its importance or seriousness by the rest of the legal academy? Are there methodological correlates to the gender skew – for example, again from my relative outsiders' perspective, there seems to have been less law and econ in family law than elsewhere, and I wonder if that is partially a function of gender (but worry that this hypothesis itself might be based on gender stereotypes)? What impact does all this have on our students' enrollment in these classes, experienc of them, and career choices in the area? Are any of these descriptive claims (if they obtain) actually problems, or at least things the field should be concerned with?

Audio, video, and the health care arguments

Against very long odds, the C-SPAN network on Tuesday asked the Supreme Court to allow live television coverage of the oral arguments that are to be held in March on the constitutionality of the new federal health care law. In a letter to Chief Justice John G. Roberts, Jr., the cable group’s chairman Brian Lamb asked the Court to “set aside any misgivings” it has about broadcast coverage because of the impact of the cases on the people and the nation, as well as the fact that the law’s validity will be an issue in the presidential and congressional election campaign. The Court had no response.

The Court has never allowed television coverage of its hearings in pending cases, even on a delayed basis. There has long been a resistance among several Justices to having cameras in the courtroom, and it seems most unlikely that the Justices would now make an exception for the health care arguments. For several years, the Court allowed same-day release of the audiotapes of selected arguments in high-visibility cases, but it stopped even that practice in September of last year (see the Court’s press release). Now, all of the audiotapes for a given week’s oral arguments are released on Friday of that week.

C-SPAN’s Lamb, in his letter, copies of which were sent to the other eight Justices, promised to work with the Court to ensure that video equipment would be “unobtrusive and respectful of the process.” He argued that “the public interest is best served by live television coverage of this particular oral argument.”

The Court has long had a different view of what serves “the public interest” about its proceedings.

We were just talking about this over a candidate dinner this evening. Like Lyle, I doubt this will happen. I hope the Court would at least consider same-day release of audio (my colleague and I both recalled sitting in chambers listening to the Bush v. Gore recordings on a several-hour delay). Clearly the justices recognize this case as special, hence the arguments lasting almost a full working day. So why not have that specialness extend to the recording of the arguments?

Chief Justice Roberts, Formalism, and Parents Involved

One of the points of my previous pragmatism posts is to contrast its various meanings with formalism. In Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), Chief Justice Roberts authored an opinion finding unconstitutional the voluntary efforts at racial integration undertaken in Seattle and Louisville. He emphasized the principle of color-blindness as the key to the ruling. He even quoted from the Supreme Court oral argument in the Brown case by Robert Carter, now a federal judge with senior status. He said that Carter's argument demonstrated that Brown was about the importance of color-blindness. He quoted Carter's assertion back then that, "no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Id. at 747.

Yet within a few days, Judge Carter explained that Roberts was badly mistaken. Adam Liptak, The Same Words, but Differing Views, N.Y. Times, June 29, 2007, at A24 (“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”) I have always thought Carter's response highlighted the risk of the formalistic invocation of a supposed constitutional principle by a Justice. By contrast, a more contextual pragmatic approach would have easily seen the clear differences in the cases and circumstances. Joel Goldstein and others have written law review articles about the Roberts view of history in the case. But then I wonder how could someone with more formalist views of constitutional jurisprudence defend Roberts' statement? I suppose they could argue that the recent Carter views should not be considered dispositive proof of what he meant earlier. Or they could argue that this error does not show a pragmatic approach is superior on such issues. Neither of these persuade me. But if someone has other responsive arguments, I am all ears.

Orality in the appeals process

Some have suggested the need/desire for greater orality in the appellate process—greater use of oral arguments and oral engagement between the court and the parties. The most prominent argument comes from Daniel Meador in Maryland Law Review (42 Md. L. Rev. 732 (1983)). This issue comes to mind with the Court scheduling 5 1/2 hours of oral argument in the health care cases, which Gerard Magliocca calls "very 19th century." Perhaps this also is Meador's point in action--greater orality equals greater visibility and transparency in the appellate process (especially if they would let cameras in already).

You Say You Want a Revolution

Two potentially revolutionary "disruptive technologies" were back in the news this week. The first is ReDigi, a marketplace for the sale of used "legally downloaded digital music." For over 100 years, copyright law has included a first sale doctrine, which says I can transfer "lawfully made" copy* (a material object in which a copyrighted work is fixed) by sale or other means, without permission of the copyright owner. The case law is codified at 17 U.S.C. § 109.

ReDigi says its marketplace falls squarely within the first sale limitation on the copyright owner's right to distribute, because it verifies that copies are "from a legitimate source," and it deletes the original from all the seller's devices. The Recording Industry Association of America has objected to ReDigi's characterization of the fair use claim on two primary grounds,** as seen in this cease and desist letter.

First, as ReDigi describes its technology, it makes a copy for the buyer, and deletes the original copy from the computer of the seller. The RIAA finds fault with the copying. Section 109 insulates against liability for unauthorized redistribution of a work, but not for making an unauthorized copy of a work. Second, the RIAA is unpersuaded there are ReDigi can guarantee that sellers are selling "lawfully made" digital files. ReDigi's initial response can be found here.

At a first cut, ReDigi might find it difficult to ever satisfy the RIAA that it was only allowing the resale of lawfully made digital files. Whether it can satisfy a court is another matter. It might be easier for an authorized vendor, like iTunes or Kindle, to mark legitimate copies going forward, but probably not to detect prior infringement.

Still, verifying legitimate copies may be easier than shoehorning the "copy and delete" business model into the language of § 109. Deleting the original and moving a copy seems in line with the spirit of the law, but not its letter. Should that matter? ReDigi attempts to position itself as close as technologically possible to the framework spelled out in the statute, but that's a framework designed to handle the sale of physical objects that embody copyrightable works.

This is not the only area where complying with statutory requirements can tie businesses in knots. Courts have consistently struggled with how to think about digital files. In London-Sire Records v. Does, the court had to puzzle out whether a digital file can be a material object and thus a copy* distributed in violation of § 106(3). The policy question is easy to articulate, if reasonable minds still differ about the answer: is the sale and distribution of digital files something we want the copyright owner to control or not?

As a statutory matter, the court in London-Sire concluded that material didn't mean material in its sense as "a tangible object with a certain heft," but instead "as a medium in which a copyrighted work can be 'fixed.'" This definition is, of course, driven by the statute: copyright subsists once an original work of authorship is fixed in a tangible medium of expression from which it can be reproduced, and the Second Circuit has recently held in the Cablevision case that a work must also be fixed -- embodied in a copy or phonorecord for a period of more than transitory duration -- for infringement to occur. Policy intuitions may be clear, but fitting the solution in the statutory language sometimes is not. And a business model designed to fit existing statutory safe harbors might do things that appear otherwise nonsensical, like Cablevision's decision to keep individual copies of digital videos recorded by consumers on its servers, to avoid copyright liability.

Potentially even more disruptive is the 3D printer, prototypes of which already exist in the wild, and which I will talk more about tomorrow.

* Technically, a digital audio file is a phonorecord, and not a copy, but that's a distinction without a difference here.

** The RIAA also claims that ReDigi violates the exclusive right of public performance by playing 30 second samples of members' songs on its website, but that's not a first sale issue.

That Time of Year

It's exam-writing time of year. As I've done in the past, I'm taking the opportunity of blogging on Prawfs to solicit thoughts/advice/gripes about final exams -- mainly from students/alums, but from professors, too. Is there anything you hate(d) to see on an exam, or love(d) to see? Particular fair/unfair ways of testing? If you could tell your prof anything about the exam(s) you've taken or are about to take, what would it be?

Perry: I remember that third thing now. I want to overhaul Congress and SCOTUS. Yeah, that's it.

The Times reports, as of a few moments ago, that Rick Perry is touting his big ideas about re-inventing government. For one thing, he apparently wants to turn Congress into something akin to the dysfunctional Florida legislature: ie., a part-time affair where representatives hold other full-time jobs. And prospective Article III judges shouldn't get so comfy in those chairs either. Perry wants to get rid of life tenure for federal judges and more-or-less enact the 18 year term limit that various liberals and conservative law professors have supported. The NYT quotes Perry:

"Too many federal judges rule with impunity from the bench,” he said, “and those who legislate from the bench should not be entitled to lifetime abuse of their judicial authority.” He proposed 18-year terms, staggered every two years, for new Supreme Court justices, and suggested similar limits on federal appellate and district court judges.

I doubt the folks who signed on to Paul Carrington's proposal did so for the same reasons that Perry's excited about tweaking judicial practice. Still, the fact that Perry is trying to overcome last week's Oops moment with some big ideas about institutional design is a good thing for the country: it's high time we had some "national conversations" about the constitutional imperfections we have. FWIW, I think Perry is normatively right to seek the kind of judicial reforms he wants (albeit for the wrong reasons). But I suspect the new model for Congress he proposes would be very unattractive, not to mention prone to corruption and amateurism, and thus unlikely to generate strong support from serious folks who study institutional design. As I recall, even Ethan's book on a new deliberative popular branch of government was supposed to be supplemental, not a replacement. Still, maybe I'm wrong and there's a larger anti-federalist contingent among the legal academics. Btw, the piece in the Times has a some good quotes from Paul Horwitz, and a bland one from me.

Quote of the Day

Courtesy of the New York Times's story about the cert grant in the healthcare litigation, this quote from Randy Barnett:

“It is high time for the high court to strike down this unconstitutional, unworkable and unpopular law,” said Randy E. Barnett, a law professor at Georgetown.

As usual, I'm not sure what to make of this quote, although I don't want to be too disingenuous about it. The problem is not that I don't know what he's trying to do, but that it makes me wonder about how one manages to be a legal advocate, a moral entrepreneur (and surely Randy has earned that title by now), and a scholar all at the same time. I see nothing wrong with law professors acting as lawyers, including in high-profile cases; and I understand that lawyers, when acting as advocates on a high-profile case, will play to the gallery. (Although I'm not sure which gallery a quote of this kind is really aimed at. The Supreme Court? The public? The National Review Online? Fundraisers?) But it does seem to me that it's not quite that easy to remove one's scholar's hat, and that coming from a scholar a quote of this sort seems a little off-kilter.

Of course, a legal scholar can be a legal realist, so perhaps the word "unpopular" is a kind of legal realism at work. Or perhaps Randy is voicing a majoritarian view of constitutional law. That said, it seems odd coming from someone who has written in his scholarship such things as the following:

"our Constitution is as much about protecting the minority from the tyranny of the majority as it is about majoritarian rule"; "Reading a right of state majoritarian rule into the Ninth Amendment is particularly odd given that this provision was conceived and formulated, as all acknowledge, by one of the more antimajoritarianfigures of the day: James Madison. Indeed, in a variety of fora, Madison consistently expressed his view that popular majorities, especially those at the state level, were the principal threat to “private” or individual rights"; "On both the political left and right you find the belief thatmajoritarian voting is sufficient to protect the rights of the people. Or at least they believe this when their side is in power. The founders personally experienced a purely majoritarian system in their post-revolutionary states and rejected it"; "Indeed, it appears that privileging the status quo is inherent in Post and Siegel's account of legitimacy. Holding prospective justices to conditions of “democratic accountability” seems to require their adherence to results in cases that a majority of the public currently like or their rejection of cases that are currently unpopular."

Perhaps the best insight into what Randy is getting at in this quote, other than public relations, comes from a recent article of his: "Now, I am not suggesting that the Supreme Court would strike down the individual mandate simply because a majority perceived it to be unpopular. But I do think that, if the Court views the Act as manifestly unpopular, there may well be five Justices who are open to valid constitutional objections they might otherwise resist." So, it would appear that Randy is trying to emphasize the law's unpopularity in order to encourage a majority on the Court to be more "open to valid constitutional objections they might otherwise resist." Fair enough, although it would be nice if his quote in the Times had been a little more candid and said something like, "This law is unpopular, so the Justices should feel free to be open to constitutional arguments they might otherwise resist."

If that's his aim, I must say I still disgree with his assessment. It's my view that, from a more or less realist perspective, the Court is willing to strike down laws that are not only highly unpopular, but uncontroversially unpopular. To use Larry Lessig's terms from back in the day when he used to do constitutional theory, it is willing to strike down laws that have moved from the realm of contestation into the realm of being uncontestably unpopular. Even if the healthcare law is "unpopular" -- and that's a far more contested point than Randy's quote admits -- it is hardly uncontroversially unpopular. It is very much in the realm of contestability, thanks in no small part to Randy's own efforts. If it were a popular but purely symbolic law, like the Gun Free School Zone Act, the Court might be willing to strike it down anyway. But to strike down a major piece of public policy, one with actual rather than symbolic effect, and one that is not uncontroversially unpopular but rather the subject of major public controversy, with substantial numbers on both sides, is a horse of an entirely different color. I should think that the Court, given its history, would be more reluctant to strike down a law like this, especially if there are avenues open to it to avoid reaching the merits at all. Of course, this prediction and five dollars can get you a latte at your local Starbucks. But I thought it was worth taking Randy's quote very seriously and parsing it out--although, in fairness, I assume he didn't really mean for anyone to take the quote all that seriously.

Two Cheers for "Law Erotica"

Stephen Bainbridge has a post on the proliferation of electronic, instead of print, versions of what is often called "law porn," although objections to the use of the word "porn" in this context have also proliferated; although it could be called "law promotional materials" easily enough, I've gone for a tongue-in-cheek compromise label in the title of this post.

I am more favorably disposed to these materials than Steve is. It depends greatly on the nature of the materials. I like materials that provide actual information of possible relevance to scholars: recent hires, recent scholarly publications, news on genuinely innovative approaches to teaching and other things that other schools might adopt as well (I see almost none of these kinds of materials!), and so on. A few schools manage to do glossy materials that are actually well-written and informative, even if they are full of self-praise: somewhat ironically given that it is usually Exhibit A in arguments against these materials, I quite enjoy NYU's annual "magazine." Its profile of Dworkin from a couple of years ago was effusive, yes, and sometimes verged on parody; but it was still interesting and well-written. I also like the "magazines" distributed by Chicago, Michigan, Toronto, and a few others. The best, in terms of its scholarly usefulness, is the

booklet produced every year by UVa, which focuses on a few faculty members each year and in each case features a short discussion of their scholarly agenda, an excerpt from a recent article, and a bibliography. Somewhere below the best are materials announcing the annual workshops and lecture series: sometimes I find a title of a work in progress that I'm interested in following up on, but most of the time the information is useless, especially since I'm not going to attend any of them anyway, and many lecture series feature bland talks by public figures.

The worst fall into three or so categories: 1) the compulsive mailers--those schools that seem to send out a new pamphlet, email, or notice card every few days (I must have gotten about 25 mailers from the University of San Francisco's law school this year); 2) the alumni magazines--"magazines" like NYU's, but targeted at alumni and other insiders rather than outsiders and yet sent to everyone in the known universe (I think Marquette's is an example); and 3) the anouncements of conferences that one isn't invited to and that are often taking place within a day of the mailing, making the information even less likely to be useful.

On the whole, unlike many, I would rather receive these materials than not receive them. That's true even if, as is generally the case, they're ridiculously fulsome, as long as they're also informative. As long as a school wants to tell me more about who it's hired and what its folks are writing, I'll be happy to read its mailers. But it would be nice if many of these schools actually seemed to give some thought to their audience when they send them out to law professors in general. I am just not interested in finding out about some nascent building campaign on the other side of the country, or about some locally well-known alumnus, or getting ten different notices from the same school when one would do, especially when the "news" contained in each mailer isn't especially impressive. And it would be great if more schools emulated Virginia's terrific booklet approach.

More on Amicus Briefs, the Healthcare Litigation, and the Fallon Article

The New York Times today has an article on the subject of my post yesterday: Richard Fallon's article on scholars' briefs, with special reference to the healthcare litigation. One noteworthy quote comes from Mike Dorf, a friend and former teacher who is mentioned in the Fallon article. Here's the quote, with some context:

In an e-mail, Professor Dorf said that he, too, had long been suspicious that “law professor briefs were attempting to leverage scholarly reputations for political/ideological ends.”

“I prefer not to be asked to sign such briefs, but because I do sign some, I worry that not signing may be taken as disagreement,” he wrote. “Finding it harder than Dick does to say no, I cannot afford to be as scrupulous as he. I admire him on both counts, but I guess I’m just weak.”

Professor Dorf, who did sign the health care brief, set out his standards. He will join briefs for groups of law professors if he trusts their organizer or author, cares about the issue and agrees with “the overall thrust of the argument.”

I appreciate Mike's candor, and his effort to set out some standards, although I still think those standards are not enough.

I should add that there are some interesting comments to yesterday's post that set forth some of the possible reasons why law professors sign scholars' briefs, even when they arguably (and sometimes inarguably) shouldn't. One thing that strikes me in looking at them is that a number of those reasons--they send a message, they indicate someone's allegiance to a particular cause, they give personal satisfaction, and even if they have no real marginal effect on the Court, they are also relatively cheap and easy to sign--greatly resemble voting. It seems to me, therefore, that the best way to characterize most signatures on scholars' briefs is that they represent a kind of civic action. That's fine; but if that's the case, it seems to me that the pomp and symbolism that surrounds the idea of a "scholars' brief" is misplaced. If it were called a "citizens' brief," or a "scholar's brief signed by various fairly well-educated interested citizens," it would be more descriptively accurate. Of course, it would also be more reason for the Justices to ignore the signatures. Still, I'm sure that most of the people who sign these briefs would rather err on the side of caution, and have no interest in misleading the Justices about the basis for their signatures.

I will add again, despite my worries that it represents a mixture of idealism, impracticality, and ego, that I think there is something to be said for the idea of genuine scholars' briefs: written by the professors themselves, signed by only a few qualified individuals, focusing on particular difficult questions of fact or law that would actually help the Court, and devoted to victory by neither side. The Times article notes that the Justices have expressed skepticism about amicus briefs in general; perhaps if scholars started preparing genuinely disinterested briefs on narrow issues that were actually intended to help, the Justices would feel differently. I would be happy to help coordinate such an effort, if anyone is actually interested.

Monday, November 14, 2011

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to reproductive technologies? Should the state fund abstinence education?

One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal.

In Regulating Reproduction: The Problem with Best Interests, coming out shortly in the Minnesota Law Review (the penultimate draft now available on SSRN), I show why BIRC (or if you prefer, child welfare) arguments are a non-starter in justifying most regulation of reproduction, despite their dominance of the discourse. This is the first part of a larger project, and its companion paper Beyond Best Interests will appear in the Minnesota Law Review’s April 2012 issue, and should go on SSRN shortly.

What is the problem with best interests?

Drawing on insights from bioethics and the philosophy of identity (especially Derek Parfit’s work), I show why the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter: unless the state’s failure to intervene would foist upon the child a “life not worth living,” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, I show that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level the Article also shows that this reliance on BIRC justifications is in tension with the implicit rejection of similar reasoning by courts unwilling to recognize wrongful life torts.

After demonstrating why the BIRC argument is unworkable as stated, I considers three possible reformulations of the argument that would save it, including one that focuses on population welfare (and non-person-affecting principles). I explain why none of these approaches is persuasive including by discussing their disturbing implications as to enhancement and eugenics.

In the companion paper, Beyond Best Interests, I consider a set of quite different substitute justifications for regulating reproduction – reproductive externalities, wronging while overall benefitting, legal moralism, and virtue ethics approaches – and evaluate their plausibility.

While Regulating Reproduction: The Problem With Best Interests is almost in print (the final version will hopefully make the diagrams a bit more readable), I still have time to work on the companion paper so I welcome any comments on- or offline. I will also blog a bit later this month about a related paper, Rethinking Sperm-Donor Anonymity: Of Changed Selves, Nonidentity, and One-Night Stands, forthcoming in the Georgetown Law Journal, which I will post on SSRN shortly.

This project has been a long time in gestation, so I redouble my thanks to all those of you who have given me comments and invited me to present at your workshops and conferences (hopefully you are all thanked in the paper), since you have helped me improve this work immeasurably.

The Penn State crimes and Imperium in imperio: An Anti-Feudalism proposal

READER ALERT: No scholarship happening here. This post is a thought experiment in reaction to Penn State and less famous recent cases in the news (at the intersection of issues in criminal law and higher education law that I admittedly have not researched). I will start with a concept, however, that is old-hat for me: Imperium in imperio.

“Imperium in imperio” was a stock phrase in eighteenth-century Anglo-American political talk. It was uttered to insist that there cannot be a sovereign body within a sovereign body. To allow otherwise, it was said, would be a “solecism” or a contradiction in terms. This conventional wisdom was variously deployed for nationalist, centralizing, or anti-feudal projects. The self-evident logic of indivisible sovereignty was undermined over time, of course, or else we wouldn’t have inherited the new kind of federalism that's embodied in the U.S. constitution (by which states can be sovereign over some subjects while the federal government is supreme over areas within its jurisdiction).

I count myself among those who appreciate that systems with divided sovereignty can (in the right contexts) be far superior to unitary systems. I also count myself among those who value a strong civil society with a diverse range of relatively autonomous institutions. (Cue here the reminder to self to read Prawfsblawger Paul Horwitz on First Amendment Institutions...)

I’ve had the imperium in imperio slogan running through my head every time I read one of the Penn State stories. My instinct is that we’ve allowed arrangements to develop that may be far too feudal when it comes to crimes in universities (and other institutions), and that the world might be a better place if we could bring back the old notion of imperium in imperio and stamp out some of the feudalism in criminal law enforcement. Rape wouldn’t disappear, but universities might be less welcoming places for it than they are now.

Perhaps this institutional analysis sounds like a bloodless way to approach something so wrenching as the Penn State rapes? Well it is. But it is not my only response. I share with many of you the judgments about individual culpability and the sorrow for the victims, and I do not mean to displace these. I do, however, perceive an institutional dimension--that many of the failures of Penn State employees may have been facilitated by institutional factors that are common. (Here I am giving away that the story of Penn State as Sports or Football Exceptionalism does not resonate with me, although I am persuaded by Mark DeGirolami’s post that sports-specific factors could be intensifying the more general institutional factors.)

The criminal imperium in imperio problem as I perceive it relates to the fact that most universities have (or act as if they have) their own regulatory channels for crimes like rape. Most dramatically, as reported in this eye-opening article, there is a “parallel judicial universe... at many of the country’s colleges and universities” in which schools have their own police forces (not just private security guards but “sworn police officers who report to university authorities”). Less dramatically, but probably more importantly, universities have formal and informal administrative channels for reporting, investigating, and/or sanctioning crimes like rape.

One might plausibly think that the more avenues there are for deterring, reporting, investigating, and sanctioning, then the better the law enforcement. My intuition is that this has it backwards--that things may be worse to the extent that universities assume any investigatory and regulatory role vis-a-vis serious criminal conduct. I won’t even try to prove this intuition. I will only paint an impressionistic picture of some the problems I perceive:

(1) Lack of institutional competence: School administrators are not trained in criminal investigation and enforcement. To the extent that campus police serve under them, or operate in close enough consultation to get co-opted, the police mission is compromised.

(2) Conflicts of interest: University channels for receiving and processing complaints can be riven with unacknowledged conflicts. This is much more true for cases like Sandusky’s at Penn State where the alleged perpetrator is a star employee of the institution. Schools may be closer to impartiality when both the complainant and accused are ordinary students, not employees. However, even in the student-only cases, universities may define their interests (especially their reputational interests) in ways that conflict with law enforcement and equal protection. (This may sometimes be true for the falsely accused like the Duke lacrosse players as well as for victim-complainants, though I suspect there may be, on average, an asymmetry--that accused students will have less of an interest than complainants in giving outside police departments a monopoly on criminal jurisdiction.)

(3) Institutional cohesion: This may just be a special class of conflicts of interest. But it is so often a theme in the cases that it seems worth singling out. Universities develop a culture of high achievement and do-gooder-ism. Anything or anyone who seems to stand for the proposition that the school is not perfect--that it may be flawed enough even to harbor a serious crime may be liable to strong discounting or demonizing.

(4) Universities are uniquely positioned to make things worse for victims (and the falsely accused) so long as these actors remain a part of campus life. Schools may leak confidential information about a complaint, leading to discrediting rumors and harassment that may impair the student’s ability to go forward with a complaint or that may disrupt the student’s education (a pattern the Department of Education is now emphasizing as an endemic Title IX issue).

(5) Lifeguard effect: Individuals--whether victim complainants or third parties (like Paterno?) may believe that they have made an official crime report (or feel that they have minimally covered themselves) if they have reported to someone in the university structure. They might have felt compelled to go to outside police if they had understood that the university could not receive a complaint and indeed might bury the information.

If we attack these problems with a strong imperium in imperio principle, everyone would understand that schools have no jurisdiction. Schools would not be allowed to have their own police forces. They could keep private security guards that are empowered (and obligated) to stop crimes in progress, but these guards would have to report crimes to the real police as soon as feasible.

For administrative processes, it might not make sense to entirely prohibit parallel jurisdiction, but rather, to have something like an abstention principle: Schools could still have their own disciplinary processes (for example, if they wanted to penalize assaults that meet a ‘preponderance’ standard but not ‘beyond a reasonable doubt’), but they could not get started on these processes until outside police had first crack at investigating. Complainants, witnesses and third-parties with information would understand that reporting to a university official is not actually crime reporting. Mandatory outside reporting laws would need to be expanded (designating more university personnel as mandatory reporters) and they would need to be much better enforced.

The imperium in imperio prohibition would apply to state universities (functionally in many ways the same as the private ones) as well as to private schools and the hybrids like Penn State (reportedly only a “state-sponsored” school which lacks state sovereign immunity).

This is my thought experiment: Assuming my characterization of the institutional weaknesses and incentives of universities is on-target, would we be better off in the alternative world of government-only criminal jurisdiction? A prohibition on imperium in imperio would only make sense if outside law enforcement is, on average, better than the schools at handling these cases. Of course, some police will be resource-deprived, or reactionary, indifferent, corrupt, or just ignorant about how to respond appropriately to sexual crimes. Some will be beholden to the local university power structure even if formally independent. But as a matter of averages and incentive patterns, would there be gains in detection, prosecution, deterrence, and fair treatment of complainant and accused?

Independent police might be superior to the schools because they wouldn’t be acting as judges in their own cases. They might also have an institutional advantage if they are electorally accountable or subject to civilian review boards. (In contrast, the schools are not electorally accountable. And personal safety seems like the kind of issue for which market failure would be the norm even if there is better disclosure of crime statistics.)

I’m not informed enough to end with a conclusion to my own thought experiment! I can only say that I think the Penn State case (and other less famous cases) suggest that there are recurring institutional design flaws about university law enforcement that make it likely that we will see (or, more to the point, not see, but covertly experience) many more of these cases.

A few thoughts on the NBA antitrust strategy

It looks like negotiations between the NBA and the NBPA have taken a decided turn away from agreement. The NBPA has begun disbanding itself, much as the NFLPA did last spring, and the players will file an antitrust claim against the league -- again, similar to the Brady v. NFL suit.

As I said at a recent SLU Law event, I think the lawyer in me was blinded by the beauty of the players' antitrust argument. It's a really good argument. There's no question that the NFL colludes; in the memorable words of Ted Olson, the league is an "antitrust recidivist." The NLRA is structured to allow that collusion when it comes to labor relations, but only if there is a collective relationship. So if the players decide to dump the union, it's really only a matter of time before the owners have to stop colluding or face treble damages. And if the owners stop colluding, then there is no draft, there are no salary caps, there are no restrictions on the market. Facing such a complete destruction of league management, I thought, the owners would likely do anything they could to stave that off. And if you want to argue for my original position, the fact that the owners agreed to a ten-year deal -- when they opted out of the last one less than two years after it began -- shows they were afraid of something.

But the beauty of the legal argument was trumped by the realities of time. Sure, the players could have held out for their antitrust-created wonderland. And I'm pretty sure they would have gotten there. But they could only get there after discovery, a trial, appeals, etc. A year at the least; more likely two to four. What player can sacrifice two to four years of their career? And that also assumes that fans -- outraged at the lack of football -- would not successfully pressure Congress to change the law. I know that's travelling pretty far down the hypothetical. But that's the point: to get to a plaintiffs' antitrust victory, you have to imagine what all could happen in four football-less years.

So now that's what the NBPA is doing. I don't know the intricacies of the negotiations; the players apparently believe "[w]e've given and given and given, and they got to the place where they just reached for too much and the players decided to push back." But I also see that the decertification effort is being led by two lawyers -- Jeffrey Kessler and David Boies. Kessler said to the AP: "The fact that the two biggest legal adversaries in the NFL players dispute over the NFL lockout both agree that the NBA lockout is now illegal and subject to triple damages speaks for itself." I don't buy that Kessler is just doing this for the money his firm will get from the suit; that'd be really short-sighted. But I do think that lawyerly minds are apt to see the enticing possibilities of the lawsuit while perhaps discounting the realities on the outside. Within the bubble of that Eighth Circuit argument, it seemed to me it was only a matter of time before the players prevailed. Still true, perhaps. But litigation does not exist in a bubble.

Fallon, Amicus Briefs, and the Healthcare Litigation

Now that the Supreme Court has granted cert in the healthcare litigation, it seems like a good time to revisit a recent conversation held here on Prawfsblawg about Richard Fallon's article on "Scholars' Briefs and the Vocation of a Law Professor." Here's my post discussing that article and the issues it raises, as well as a Prawfs post by Dan Markel and commentary at VC by Orin Kerr. Recall that Fallon argues that too many law professors sign scholars' amicus briefs without carefully scrutinizing them, and that "norms of scholarly integrity should bar law professors from signing scholars’ briefs unless they have personal knowledge of all of the principal authorities on which a brief relies and, more substantively, that they should not sign a brief unless, in their roles as scholars and teachers, they would applaud a court that simply adopted the brief’s reasoning as its own."

Most law professors, I would guess, are inclined to agree with Fallon's recommendations in principle. In practice, however, even when the spirit is willing, the flesh (or the ego, or more charitably the urge to do good and have an impact on the law) is weak. A legal scholar might be willing to abide by Fallon's arguments in a run-of-the-mill case. But one might reasonably conclude that the healthcare litigation could draw an above-average amount of energy, attention, and concern. (Note the dry Canadian understatement.) It will be much harder for law professors, being all too human, to resist the urge to join scholars' briefs--and there will be plenty--arguing on one side of the issue or the other. I still think they should resist. I am betting that before long, there will be plenty of briefs floating around the Internet, and plenty of signatories who are inexpert in healthcare law and/or economics, tax law, the Commerce and Necessary and Proper Clauses, the statute itself, or all of the above, and who know little about the particulars of cases like Raich, Comstock, or Wickard v. Filburn besides what they picked up in law school or a one-page excerpt in a casebook. They might still conclude that given the importance of the case, it is important for them to add their name to the "count" of professors on one side or another. But it isn't, and they shouldn't--although they probably will. I hope we will at least keep track of who does, and whether they have any basis for signing a brief qua "scholar."

In my earlier post, I also made the following suggestion: "I would much rather see scholars submitting amicus briefs in support of neither side, briefs that explore the genuine complexities or conflicting normative positions of both sides and look at the possible consequences of different conclusions. Even where one thinks one side definitely ought to win and the stakes are high, I still think the scholar's own particular contribution at the Supreme Court level, given the likelihood that the advocates themselves will make all the basic arguments, should be to explore the difficulties that are often elided or neglected by both sides." That seems true of this case, as well. I think the issues will be well mooted by the many briefs on both sides, so that there will be less value for scholars' briefs of any stripe in this litigation than there might be in, say, a difficult tax case. Still, I could see some actual added value in briefs written by smallish groups of scholars who, instead of arguing in support of either the petitioners or the respondents, delve into particular questions raised by the litigation--the history of insurance, the economics of healthcare, whether the action/inaction distinction makes sense, whether there are any judicially manageable limitations on the Commerce Clause and whether it matters, etc.--as a purely scholarly matter and with no interest in who wins.

I won't hold my breath, but if legal scholars (and others, such as historians) actually want to contribute to the Court's work, surely this would be a better way to do it than adding a "me too" signature to a brief written by a lawyer at a law firm, on issues they don't fully understand, and asserting that they are signing as "scholars."

Status Update re: CrimProf Gathering at LSA Hawaii 2012

As I've mentioned before in this space, Carissa Hessick and I are trying to play matchmaker for crimprofs who are planning on attending the Law and Society conference in Hawaii in June 2012. If you're interested in participating but still haven't contacted us, or if you are interested and already have contacted us, then look after the jump for a status update.

Greetings everyone.

Carissa and I are pleased to say that we've now got about 30 people interested in presenting papers at LSA 2012 in Hawaii (info below) and so we should have at least seven paper panels, and possibly a couple roundtables that might emerge too.

Here's the status update:

Most of the panels have people with both overlapping subject area for papers and overlapping expertise. There are a couple other panels where everyone has overlapping expertise even if not every panelist is presenting on exactly the same sub-specialized topic. We did our best to ensure that you would at least have good readers on your panels even if they were not writing a paper on the exact same subject.

That said, we have a couple people who are as yet unmatched (panels require 4 papers) and we have probably one panel that might seem a little more tenuously connected than we would prefer. :-)

So, if there are any other folks who would like to present on criminal justice related issues at this conference, please let us know asap. We have some folks interested in corporate crime and crim-igration that we'd like to match up too if we could, and we might switch some of the folks around depending on our sense of best fit.

FYI, we currently have :

2 crim pro policing and punishment panels

1 crim pro pretrial panel,

1 crim pro right to counsel

1 punishment theory

1 sex, crime and punishment

1 panel on the evolution and transformation of criminal justice institutions (the aforementioned but nonetheless interesting hodgepodge)

Accordingly: if you've not told us you're interested, we might still be able to accommodate you. Let us know asap please!

Caperton v Massey I

Though my goal here is to look at the Supreme Court's use of science in the cases that are argued before it this year, I actually want to start two terms ago, with Caperton v Massey. Caperton, a case involving campaign financing and judicial recusal, does not immediately seem like a major "empirical evidence" case. But Kennedy's majority opinion is built around a wholly unsupported empirical statement, and Roberts wrote a lenghty dissent that accurately highlights the challenges empirical evidence poses for the Court--but then ends his opinion with a potentially major empirical gaffe of his own. So Caperton not only provides a good summary of the troubles empirical evidence creates for judges, but it also serves as a good case study for the ways that unacknowledged empirical assertions can ambush judges, even when the judges are thinking carefully about that very issue. This post will look at Kennedy's opinion, my next one at Robert's.

The facts in Caperton are relatively straight-forward. In 2002, Massey Coal lost a major tort case ($50 million), and in 2004, while the case was working its way on appeal up to the state supreme court, Massey's CEO, Don Blankenship, spent more than $3 million to successful help a challenge, Brent Benajmin, unseat an incumbent. In 2005, Brent Benjamin repeatedly refused to recuse himself from Massey's case when it reach the supreme court, and he he voted with the majority in two 3-2 decisions that reversed the judgment against Massey. The plaintiffs then argued to the Supreme Court that Benjamin's refusal to recuse himself violated the Due Process clause.

Justice Kennedy, and a majority of his colleagues, agreed. The standard they adopt appears to be grounded in psychology: citing Withrow v Larkin, they state that a conflict of interest requires recusal if "under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of acutal bias or prejudgment that the practice must be forbidden if the guaranteeof due process is to be adequately implemented." But Withrow cites no scientific support for its "realistic appraisal," nor do any of the cases it cites to bolster its "pyschological" approach. Nor does Kennedy's majority.* Not a promising start.

In fact, at the heart of Kennedy's argument is a bald, potentially incorrect empirical claim. Kennedy simply asserts that "Blankenship's campaign contributions--in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election--had a significant and disproportionate influence on the electoral outcome. And the risk that Blankenship's influence engendered actual bias is sufficiently substantial" to require recusal.

Really? First, as is always the case in lobbying expenditures, causality is tough to disentangle. Blankenship didn't just randomly choose Benjamin, but likely selected him because of his political views. So did the money cause Benjamin to vote how he voted, or did Benjamin's proclivity to vote a certain way cause the money to flow to him? The former is troubling, the latter is just the nature of judicial politics. Second, the incumbent wasn't without campaign money of his own, he made numerous missteps during the election, and only one of West Virginia's major papers endorsed him over Benjamin. And third, the marginal effect of campaign spending is ambiguous, but it appears to exhibits steep decline after a certain point; it is thus unclear whether $3 million is all that much more effective than, say, $500,000. Kennedy says there was a "serious, objective risk" that Blankenship effectively chose his own judge via his campaign contributions, but he marshals no real evidence to support this claim, and it is not a clear-cut assertion like "parachutes prevent deaths."

Furthermore, how do we know when we cross the "sufficiently substantial" risk of bias line? First, as a normative matter, what is the number that goes with "substantial"? But second, and more empirically, how do we estimate the effect of money on that risk? Kennedy cites no psychological studies of any sort about how people's decision-making processes are consciously or subconsciously altered by, say, the way other people have supported them. Perhaps this isn't Kennedy's fault: it could be that such evidence simply doesn't exist (see p. 565 here, n. 17 in particular--and note that the Rotunda piece was published in 2003, so it was available to the Caperton Court). But the fact that the evidence doesn't exist doesn't mean that Kennedy is simply free to state that the bias is present.

That is not to say that Kennedy's opinion is necessarily wrong. But it is unacceptable to say "if condition X holds, recusal is necessary" and to then assert that X holds when X is a profoundly difficult empirical question. If Lee Epstein is right that there is little evidence on this topic, then Kennedy's opinion must reflect that. An empirically honest opinion would be framed along lines such as this:

Campaign contributions run the risk of influencing candidates in ways we find unacceptable. [This is clearly true--that risk is present, even if we cannot quantify its size.]

In this particular case, we lack evidence that the expenditures explicitly induced Benjamin to vote a certain way

We also lack more generalizable evidence that expenditures of this sort induce recipients to change their minds at least x% of the time [where x is the point of "substantial" influence].

In this case, we cannot take absence of evidence to necessarily mean evidence of absence.

Therefore....

Well, that last step is the tricky part. The court could either say that in the absence of evidence judges are presumed to be unbiased or that they must recuse themselves. But in either case the court must make it clear that it is not making an empirical claim about judicial behavior but just a naked--and ultimately rebuttable--legal presumption required to reach a decision that day.

Such an approach could** yield several benefits. If nothing else, it would clearly be much more transparent. But it could also ensure that the Court's opinions respond more quickly to developments in empirical evidence. It could also force the justices to try to gather more rigorous empirical evidence, and where such evidence clearly doesn't exist to think more carefully about how to make error-cost tradeoffs in the presence of genuine uncertainty. As I said in my first post, one of my primary goals with this project is to see if a case-by-case survey of the Court's use of empirical evidence might shed some useful light on exactly what could work and what it could do.

* It appears that the briefs do try to cite some evidence. But to the extent that this evidence shaped the Court's opinion, it should be cited in the opinion, if only to (1) make transparent how the justices are reaching their conclusions and (2) allow other researchers to check the validity of the cases on which the Court relies.

** Yes, yes, I know. I lack empirical evidence to support my own claims, and I am using that ultimate weasel-word, "could," that I have and will criticize the Court for using as well. And while part of me wants to argue "what could be the downside of the Court being more honest about how it reaches its conclusions?!" I realize that the issue isn't that easy. The Court lacks an enforcement arm, so its opinions are followed because people feel somehow compelled to do so. If the Court started saying "we're just guessing here," perhaps it would lose some of its moral suasion. Of course, perhaps we should be troubled that the Court is effective only because it lies at some level, but that is an issue for another day.

It's the End of the Workshop as we Know It (and I Feel Fine)?

The combination of participating by skype in a debate in Mississippi two weeks ago, getting a walk through of our beautiful, highly video conference capable, classrooms in our soon to open new building, and running a workshop series on health law/bioethics/biotechnology with Einer Elhauge has made me think about whether new technology ought to make us rethink the law school workshop. While there has been plenty of blogospheric discussion of skype meat market interviews and even skype conferences, I've seen less on workshops which seem the natural place to start.

With the the technology I saw in our new classrooms, one could easily have the presenter (plus his/her powerpoint slides) up while the individual sees the faculty at the same time. The fact that in workshops usually only one person is talking at a time makes this very easy to control.

Pros: (1) Cheaper: Between airfare, hotel, meals, I would ballpark the typical workshop costs the hosting school roughly $1,000 for one to two hours of scholarly interaction. (2) Opportunity Cost for the Presenter: Many presenters would be much more willing to participate in workshops if the cost to them was merely an hour sitting in their office or law school videoconference facility, rather than a day and a half of travel. This might be particularly helpful for those with child or eldercare responsibilities, such that it is hard for them to take the time off.

Cons: (1) We Lose the Schmooze.

The ability to chat with folks before and after the workshop, and the dinner after are often enjoyable and enlightening. That said, I think the schmooze benefits to the presenter is not nearly as much as it is in a conference setting. (2) Poorer attendance? Perhaps sitting in front of a screen feels like less of an "event" than someone's visit to the law school, such that attendance at workshops would drop off. This is possible, I have no data, but my priors go the other way. (3) Cost of the Technology: especially good technology that is unlikely to drop video-chats, etc. There are costs here, but over even the course of 2 years I would guess the savings in not flying people in would make up for it, though of course you need the technology to be good on both ends to make it work which, may lead to coordination problems.

What I am tentatively thinking (and perhaps I will consider implementing this in my own workshop some time in the future): as a first step, give all presenters the option of video-conferencing in if they prefer, but be willing to fly them in instead if that is their preference.

I am curious what others think, and especially if any schools have tried this for their workshops and to what effect?

More job talk thoughts

The guest post from my colleague Joelle Moreno with tips for giving a non-sucky job talk generated quite a bit of interesting discussion, both here and in some email exchanges within our faculty. Sitting here in the heart of callback season, I wanted to offer a few further observations, questions, clarifications, and additional suggestions.

First, the observation/question: Is unnecessary PowerPoint use in decline? Only two of our speakers have used PowerPoint--and of those, one had photos and proposed statutory text and the other had maps. Everyone else just got up and spoke (needless to say, it has been a pleasure). Are other people seeing the same thing? Has the word gotten out about the uselessness--indeed counter-productivity--of PowerPoint when all you are doing is showing text or bullet points of the talk? Has the word gotten out that reading PowerPoint slides does not make a talk more engaging?

Second, one of Joelle's tips was "Don't Be a Suck up." A good tip that dovetails with a related one: Don't name-drop, either people on the faculty or people in your area. Unfortunately, there is a ridiculously fine line between name-dropping and showing a grasp of the legal literature. And where you fall on that line may vary among faculty members; what is annoying name-dropping to one faculty member is "wow, she knows the literature and is comfortable talking about it" to another. All of which goes to show that applying tips in this process is not as easy as it sounds.

Third, an additional tip:

You must be ready to talk not only about the precise (often narrow) subject of your paper, but also about broad concepts in your area. If you present a paper about the estate tax, you better be able to answer questions about the tax code and tax law more broadly. "I haven't looked into that" or "I haven't thought about that" is not an acceptable answer if the question is about your field generally. Even if you haven't researched the specific question, you must be familiar enough with it that you can compose a reasonably thoughtful answer on the spot. Again, there are fine distinctions at work. If you are presenting a paper on the jurisdictionality of the ministerial exemption, you shouldn't necessarily have to answer a question about tax law. But anything closer to that is fair game. You must be prepared not only to talk about your paper, but to talk about the broad subject matter in which you are writing and in which you purport to have a scholarly interest.

Sunday, November 13, 2011

Perfect Makes Practice?

I wanted to revisit a comment that I posted on a really thoughtful post by Robin Effron about students' lack of professionalism and when the duty to seize a so-called teachable moment kicks in. I wrote that

----

...[F]riends from law school, who unlike me, do not teach law students, but supervise junior attorneys in practice... have confirmed that to the extent that students are thoughtless in their approach and interactions with professors, they're not necessarily polishing up and putting in the effort to be more diligent, considerate, and prepared for their supervisors and clients. So, for example, a student who asks me questions about what the reading is for that day because he can't be bothered to consult the syllabus is likely to be the same student who wastes a partner's time by asking certain basic things about an assignment that are clearly knowable without resort to the partner. A student who expects me to keep track of, look up, and report to her about her absences likely is the same junior associate who, a few years later, is seen by the senior associates for whom she works as having unrealistic expectations that they will keep track of her work, deadlines, and responsibilities and that they exist to make her life easier instead of vice versa. A student who shows that he cannot be bothered to consolidate questions or proofread assignments or correspondence is likely the same associate who yanks things out of the printer and drops them on a senior associate’s desk as he strolls out of the office, or shoots careless correspondence off to a client or judge without regard for who is going to catch his careless mistakes. These associates quickly tarnish their reputations internally, externally, and permanently. They don't last in jobs, and they don't last in practice.

Today's cost-conscious client does not want to pay 3/4 of a senior person's hourly rate to employ a junior person and have shoddy work, wasted hours, and an unreliable person who cannot be bothered to exhibit professionalism as counsel. They'd rather pay full price for the real thing, because it's cheaper and better for their case and for their overall representation. I have long thought that we as law professors owe our students more in terms of their complete professional training, but I, too, have struggled with how to address certain of these issues without alienating students or seeming less approachable; I pride myself on being very accessible to students. I won't even get into scenarios where a student is disrespectful, but clearly doesn't realize that she is being rude at all. I fear we may do our students the greatest disservice when we remain silent as we strive to build their confidence and facilitate their ability to speak freely to us. We graduate them, but then the real world must (and invariably does) correct what we have not deemed to be our place to address. It's a topic worthy of further discussion, and I am glad that you brought it up. who employ and supervise junior attorneys.

--

Fast forward to this year, and I have found myself chairing our school's Faculty Placement Committee.

This committee works alongside the Career Development Office to plan and staff programming geared toward helping students find and land jobs in this competitive market. I also find myself surrounded by friends in several major cities including Miami, New York, and Washington DC who employ and supervise junior attorneys. I have geared much of the advice that I dispense at panels called things like "How to Find and Keep a Job" or "How to be a Good Summer Associate" toward addressing the pet peeves and sought-after traits that I hear about.

This year, as well, I joined several junior faculty members in creating what we are calling a "working group" on classroom culture. With the goal of identifying and heading off behavioral and other problems in the classroom that seem to be engendered by students' lack of accountability and/or professionalism, we started off the school year by addressing students at Orientation. Although most of our students do not exhibit a lack of professionalism in the classroom, our goal was to identify what we considered unprofessional behavior before anyone engaged in it so that the discussion could be thoughtful, rather than antagonistic or accusatory. We identified behavior that had the potential to harm others' experiences, like a student's not doing the reading and then coming to class with a series of questions designed to catch her up at the expense of her classmates' time (and patience). Aiming to create a culture of professionalism and civility from the outset, we talked about the connection between the habits and mindsets that our students would form and those that they would engage in or subscribe to as working professionals. We talked about the state of the profession and about how many leaders of the bench and bar bemoan what they term a loss of civility and professionalism in the practice of law.

I wanted to see if any of you or your schools had attempted anything similar and what the results had been. We were very careful to make clear that students could act and approach their studies as they wished, but the impressions that they made on their professors and one another could have long-lasting and far-reaching ramifications. I would like to think that we aided some students who hadn't given much thought to these issues with self-awareness, law school protocol, and accountability that will give them a competitive edge in the profession.

Rioting For What Matters

I thought this, hypocrites frères, was an instructive piece on the state of contemporary universities by Anthony Grafton, whom I find reliably enjoyable on pretty much everything. I also just finished listening in the car to I am Charlotte Simmons by Tom Wolfe, a book which got some sniffy press at the time of its issue (anything too critical of the sexual mores of college students tends to grate against prevailing aesthetic sensibilities) but which rang true of sizable fragments of my college experience at Duke. Both the book and Grafton's piece got me thinking about what it is exactly that the students who are rioting at Penn State are about. It isn't a misguided sense of loyalty to the football coach, or to the team, or to the university. Loyalty has little to do with it at all. It shouldn't be dismissed as easy thoughtlessness, or the callowness of youth, or just plain illogic or stupidity.

They are rioting to protect and defend what university life is mainly about for many of them.

It is about a shallow association with the university brand-name and its athletic program, and the wish to (as one of the authors in the review puts it) "act out cultural scripts of college life" which have been pre-fabbed and pre-market-tested for them. Grafton notes (and many have noted before him) that obtaining the university's brand credential is of crucial importance. Credential-seeking has always played a role in the reasons to go to a university. But today, in many schools, it is coupled with a desired association with the university's college sports program (football and basketball primarily). Students become somehow invested in their teams. When they graduate, it is college sports which draws so much money from the alumni. The financial statistics that Grafton includes -- the vast sums of money spent on college athletics -- are again well-known.

What is perhaps less discussed is the effect that all of that money must have on the psyche of the American college student. The school spends big on sports; the alumni spend big on sports; the public spends the capital at its disposal on college sports; the students see all that money; and they believe (not without reason) that the university is its sports, and that the sports are the university. They actually know few or none of the college athletes, or the coaches, or any of the real participants in that world; personal knowledge and active involvement are hardly the point. The point is to live out an association at a numb distance, to fantasize that this association is somehow one of the most important and lasting of their lives, and to carry that fantastic association into post-university life.

"The sideshows have taken over the big tent," writes Grafton, and this is just as much true as a matter of number crunching and raw financial outlay as it is of the psychological and cultural connections that it fosters. The sideshows are the reason to go to college today, and the most popular act -- suffused with all of the exotic circus attraction of gorgeously outré physical size, speed, and strength -- is athletics.

So when students show no moral common sense; when they riot right in the teeth of the horrors and depravities of child abuse; when they destroy property and carry on in the organized, a-moral, wildly -- willfully -- free drunkenness that individuates college life today...how silly of the rest of us to affect outrage, to take pretend offense as if -- tut, tut -- they ought to know better. They are behaving as our universities have conditioned them to behave, just as we ought to have known, and ought to have expected, that they would. This is what we wanted, it is by our design, and now that we have gotten what we wanted -- the libertine freedom to worship the gauzy, money-dripped excesses of athletics -- we dress ourselves in our own showy costume of righteous indignation. But they are acting entirely predictably, given the state of affairs in which they find themselves. They are rioting for what matters.

Friday, November 11, 2011

Justice Scalia and Empirical Pragmatism

The U.S. Supreme Court has discussed empirical evidence and data in many constitutional rights cases with varying results (think of Brown, Craig v. Boren, McCleskey). The use of such material in constitutional interpretation can be called empirical pragmatism. A very interesting recent case involves Justice Scalia's passionate rejection of this type of evidence.

The case is Brown v. Plata, 131 S.Ct. 1910 (2011), which upheld a broad structural injunction against the California prison system for its failure to solve severe overcrowding, and related medical care problems, for many years. In dissent, Justice Scalia wrote as follows: "...the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course, they were relying largely on their own beliefs about penology and recidivism. And of course different district judges of different policy views would have 'found' that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make 'factual findings' without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate...Yet because they have been branded 'factual findings' entitled to deferential review, the policy preferences of three District Judges now govern the operation of California prison's system." Id. at 1955.

I wonder what folks think about this argument. I find the tone to be unnecessarily dismissive, and also find irony in his ideologically based assertions that such findings are not neutral. What else could the District Judges have relied upon besides experts and data. Moreover "what occurred here" was a Court ruling that may protect the health and safety of vulnerable prisoners.

Statistics on "The Supreme Court, 2010 Term: Leading Cases"

The print version of the Supreme Court issue of the Harvard Law Review, volume 125 issue 1, is out (the online version isn't up yet). I look forward to this issue every year, and I'm thrilled it's here. It is a terrific issue, essential for constitutional scholars and students of the Supreme Court. Its Foreword is usually a great state-of-the-union address for people in the field. The editors themselves contribute highly useful writing to the issue. They are fantastic--truly admirable. HLR is the best journal in legal academia.

I say some of the above out of genuine sentiment--I really think it's a consistently great and useful issue--and some of it because I would very much like the Harvard Law Review to publish everything I write, or at least to run reviews of The Agnostic Age and all my books that follow; and yet I want to poke a little bit of fun.

Every year, the issue features a "Leading Cases" section in which the student editors give short summaries and critiques of many of the noteworthy cases in the past Term. I mean no insult when I say it is formulaic writing. All I mean is that it generally follows a fairly constrained traditional formula in terms of structure and content. I actually think the Leading Cases are often a very useful place to start when you're thinking about a new case. But it is still striking how much of the formula involves or even encourages disagreeing with the Court, and often telling it how it should have done things. (Posner would find this unremarkable, given his view that top law students go almost immediately into writing these opinions for judges, which is one more reason for the relatively mechanical legalism, genre writing, and impersonality he thinks characterizes most judicial opinions, including those at the Supreme Court.)

One of the features of the Supreme Court issue--one of its best and most useful features, in fact--is the "Statistics" section, which provides a statistical overview of the past Term. I wonder if we could imagine a new section for the Supreme Court issue called "'Leading Cases' in the Supreme Court, 2010: The Statistics," which would provide the same statistical overview for the students' case comments themselves. If we did that this year, we would find:

Total number of cases discussed: 19

Comments approving fairly broadly of the opinion under discussion: 5

Number of approved-of cases that are basically consistent with conventional legal liberal views: 3

Comments disapproving fairly broadly of the opinion under discussion: 6

Comments saying the Court "failed to" do or consider something, or "missed an opportunity" to do something, or "should have" done something slightly different: 8

So there you have it. The Justices are forewarned: They had better do a better job. And I know just the folks who can help!

J. Howard Marshall, II, Superstar

The most entertaining part of the panel I participated in yesterday at Cardozo on Stern v. Marshall was Professor David Carlson's recounting of the life of J. Howard Marshall, whose Texas-size fortune was the subject of the legal wrangling involving the bankrupt estate of Anna Nicole Smith. So, with a big hat tip to David, here's a little quiz by which you can test your knowledge of J. Howard Marshall, II trivia. Answers are given in the comment section of the post.

1. Immediately after graduating from Yale Law School J. Howard Marshall did what?

a. He married Anna Nicole Smith.

b. He was hired to teach at Yale Law School.

c. He declared bankruptcy.

2. One year after graduating from Yale Law School Marshall did what?

a. He co-authored an empirical study of bankruptcy with William O. Douglas.

b. He founded Marathon PipeLine Co., one of the litigants in a crucial precedent in Stern v. Marshall.

c. He became Benjamin Cardozo's first law clerk at the Supreme Court.

3. Which of the following connections between Marshall and bankruptcy law is true?

a. He served as a bankruptcy law judge.

b. He served as President of a predecessor company of Marathon Oil, which owned Marathon PipeLine Co.

c. He founded Granfinanciera, S.A.

4. Which law did Marshall draft?

a. The Public Utility Holding Company Act of 1935.

b. The Connally "Hot Oil" Act of 1935.

c. The ALI's Uniform Inter Vivos Trust Act.

5. With which group did Marshall become involved starting in the 1950's?

a. The Koch brothers.

b. The ASPCA.

c. The Democratic Party.

6. One of Marshall's loves was a dancer named Lady Walker. How did she die?

For example, Eugene Kaspersky stated at the London Cyber Conference that "we are close, very close, to cyber terrorism. Perhaps already the criminals have sold their skills to the terrorists - and then...oh, God." FBI executive assistant director Shawn Henry said that attacks could "paralyze cities" and that "ultimately, people could die." Do these claims hold up? What, exactly, is it that cyber-terrorists are going to do? Engage in identity theft? Steal U.S. intellectual property? Those are somewhat worrisome, but where is the "terror" part? Terrorists support malevolent activities with all sorts of crimes. But that's "support," not "terror." Hysterics like Richard Clarke spout nonsense about shutting down air traffic control systems or blowing up power plants, but there is precisely zero evidence that even nation-states can do this sort of thing, let alone small, non-state actors. The "oh, God" part of Kaspersky's comment is a standard rhetorical trope in the apocalyptic discussions of cybersecurity. (I knock these down in Conundrum, coming out shortly in Minnesota Law Review.) And paralyzing a city isn't too hard: snowstorms do it routinely. The question is how likely such threats are to materialize, and whether the proposed answers (Henry thinks we should build a new, more secure Internet) make any sense.

I have been following the relationship of law to post conflict and political transition for many years now. The puzzle that occasioned this book was the apparently expanding role of law in periods of conflict, and the way the law at issue departed from traditional international law and its traditional distinctions between war and peace, international and domestic law, and focus on state security, to a shift in focus and new emphasis on the protection of human security.

In this book, I trace this development historically and through illustrations involving conflicts in diverse regions, showing that the overarching legal framework which governs this new normativity draws from international human rights law, the law of war (its two strands) and international criminal law.

I argue that just as the human has become the subject of protection, so too it is the subject of enforcement, although this understanding can also result in greater duties for the state regarding as we have seen in recent legal judgments in number of areas, from awards of reparations for abuses committed in and out of conflict and often after the passage of time to identifying responsibility in the counter terror campaign.

A host of controversies ensue from the normative, what principles ought guide the new responsibility to protect?

To the question of how largely our state based institutions can operationalize global engagement? The emergence of humanity law and its domination in many contexts of conflict lead to a number of hard questions that need to be tackled directly. For example: Have criminal trials far from the scene of conflict made it more not less difficult to heal old grievances, for example in the Balkans? How about the intervention in Libya? Did the international legal community jump the gun in threatening Ghadaffi and his family with criminal indictments, taking off the table options such as amnesties or exile that might have led to an earlier and less bloody regime change in Libya? Have the competing allegations of war crimes and humanitarian violations made in harder rather than easier to have meaningful peace talks between Israel and Palestine, distracting from the underlying political claims at issue? I look forward to hearing your views.

Technicalities

One of the first words I try to beat out of my 1Ls is "technicality." The law is not a technicality, nor should it be treated that way. And it is important for law students and lawyers to understand that, because too many non-lawyers don't.

Case in point: The reaction on Deadspin (yeah, I know, consider the source) to this story suggesting that the two indicted university officials may avoid the failure-to-report charge. In 2002, the time at which they heard about Sandusky and a boy in the football locker room shower, Pennsylvania law only mandated reporting when a person came directly into contact with a victim or perpetrator, not when the person only had second-hand knowledge. The law was expanded in 2007. This, some are saying, is them getting off on a technicality or through a loophole. No way. It cannot be a "technicality" for someone to avoid conviction for conduct that, at the time, was not illegal. Yes, they may have had a moral duty to do something. But we don't put people in jail for purely immoral conduct.

The Legal Problems of Our Century

In 1900, mathematician David Hilbert gave an enormously influential speech listing 23 major mathematical problems to be studied in the coming century. (English text here.) The problems were unresolved at the time, but some have since been solved. A century later, the Clay Mathematics Institute put money behind seven mathematical problems - a million dollar award (the Millenium Prize) for a solution.

Is there a legal equivalent? (Some jokester suggested to me that problem number one was whether there were any problems.) And is there anything distinctively legal about the problems? So I can think of issues that would benefit from the participation of lawyers and law professors - water availability and distribution, disease prevention - but I am not quick to identify legal problems.

I do find Hilbert's description attractive, although maybe very "last century" and maybe specific to a field like mathematics: "A mathematical problem should be difficult in order to entice us, yet not completely inaccessible, lest it mock at our efforts. It should be to us a guide post on the mazy paths to hidden truths, and ultimately a reminder of our pleasure in the successful solution."

Defending JoePa

What are they protesting and why? Do students really believe that Paterno is being treated unfairly? Do they really believe that Paterno (and they) are occupying some moral high ground here? Do they understand why he was fired, why he had to be fired, and why it's different than, say, Ohio State firing its football coach over a tattoos-for-cash scandal? Are they arguing in favor of a presumption-of-innocence as to Sandusky (the real wrongdoer in all of this), in a "If Sandusky is being falsely accused, then so is Paterno?" sort of thing? (If they are, no one is saying that). Perhaps they are trying to make this sound like Duke Lacrosse again--firing the coach over allegations of wrongdoing that prove to be totally unfounded (although the evidence here is a bit stronger than there). But again, everything I've heard has been "They fired our coach and we love him," without any seeming realization of the context.

Ironically, Penn State had earlier announced plans for a "Blueout" at this weekend's game, with fans wearing blue in reference to the campaign to end child abuse. Could they have had that symbolic rally while also cheering Paterno, given what has been alleged?

Much of the commentary, especially from sports bloggers, has been to the effect of "these are stupid college kids looking for a chance to wreak havoc." Perhaps. But I would hope that even a 20-year-old understands the gravit of a situation that goes well beyond football and a football coach.

Dorf on the Waning of Constitutional Tests

My friend and former professor Mike Dorf has a very interesting post on his blog about what he calls "the waning of constitutional tests." Writing about Justice Thomas's recent dissent from denial of cert in an Establishment Clause case, in which Thomas begs the Court to reconsider its endorsement test in this field, Dorf discusses the ways in which the famous Lemon test has been ignored but not overruled in the Court's jurisprudence. Some key passages from his discussion:

The Supreme Court has become increasingly indifferent to the application of the multi-part, multi-stage "tests" that came to characterize its constitutional jurisprudence in the 1970s and 1980s. . . . [Examples omitted.] These are all important, high-profile cases of the sort that appeared to be governed by, or that seemed to call for the formulation of, a doctrinal test. Yet in each -- and in satellite cases in both the Supreme Court and the lower courts -- questions about what test applies seem not to play much of a role, if any.

And note an oddity: Formal tests have come to play a decreasingly important role in the Court's constitutional rights jurisprudence during the very same period that textualism has come to play an increasingly important role in statutory cases. Yet the reliance on rule-like tests and textualism are both versions of formalism. Why would formalism wane in constitutional rights cases just as it has been waxing in statutory cases? . . . .

Another possibility is that the formalist Justices never thought that the old doctrine, with its multiple prongs and branches, was ever really rule-like. Justice Thomas says just this in his Utah Highway Patrol Ass'n dissent. He complains about the manipulability of the Lemon/endorsement test. But in the cases cited (including Heller), the Court is not replacing malleable tests with more determinate tests. If a somewhat malleable test is, well, somewhat malleable, then no test at all would seem to be more malleable still.

My own tentative view is more nearly the opposite of Justice Thomas's. I think that the old tests were actually reasonably determinate, but that as the Justices found themselves increasingly unhappy with the results to which the tests led, they moved away from the tests. Seen in this light, the problem with the Lemon/endorsement test is not its flabbiness but that, if taken seriously, it would require much more separation of church and state than the Court's conservatives can stomach. Ditto along different dimensions and in different directions for the other cases and tests.

I won't engage the determinate/indeterminate question as such, and others might also ask whether it's that tests have waned in constitutional law, or that they have been replaced by other, more categorical sorts of tests that work by up-front inclusions or exclusions (ie., Employment Division v. Smith) rather than a balancing of factors (ie., Sherbert v. Verner). I will add, though, that I've written about this a little in a Canadian context and will have more to say about it in an American context in my book First Amendment Institutions, which hopefully will be published next year. It strikes me as an interesting aspect of what we might think of as the lifecycle of constitutional adjudication, and perhaps adjudication in general:

1) A court approaches a new area and, to give some shape to the field and lay claim to adjudicative authority as against future courts, quickly lays down a seemingly clear set of rules or standards to guide adjudication in this area. 2) As time goes by, it becomes clear that these tests have not fully accounted for a variety of complex facts, different factual scenarios, and institutional and other contexts in which these tests don't provide as much guidance as the judges initially thought. 3) The court is then caught in a tension between its institutional preference for clear, "lawyer-like" formal tests, whether rule- or standard-based, and its need to recognize the importance of various factual contexts. 4) For a while it tinkers with these tests, or recognizes various ad hoc exceptions and limitations, while maintaining allegiance to the fundamental soundness and applicability of those tests. 5) Eventually, something gives. It either replaces the test with a new one, or abandons tests altogether, or replaces one kind of categorical approach with a very different one; for instance, it replaces an interest-balancing standard with a formal, categorical rule. Of course, that test is subject to the same problems. So the cycle starts all over again, and the pendulum thus ends up swinging back and forth over time between a rule-based approach and a standard-based approach. 6) Either before or instead of step 5, the court will often simply leave the test in place while ignoring it and experimenting with various approaches, as it arguably has with Lemon. This may lead to sounder results in individual cases, but also results in a loss of guidance, coherence, and confidence. It is thus probably the case that step 5 can be delayed, but not avoided; it is inevitable at some point.

Quotes of the Day

A hell of a story today from the smoky streets of the currently-highly-inaptly-named Happy Valley, where some students rioted to protest the departure of JoePa. Not that I favor riots at all, but would that a college town would occasionally riot for reasons having to do with, you know, the educational affairs of the college itself, instead of something trivial like college football! Some of the quotes are even better than today's other contender for quote of the day, "Oops":

1) “We got rowdy, and we got maced,” Jeff Heim, 19, said rubbing his red, teary eyes. “But make no mistake, the board started this riot by firing our coach. They tarnished a legend.”

2) “Of course we’re going to riot,” [another student] said. “What do they expect when they tell us at 10 o’clock that they fired our football coach?”

3) “My friends were like, ‘I don’t want to get maced,’ ” [another student, who just came out to see the show] said. “I was like, ‘I don’t want to miss seeing this, so I guess that means I do kind of want to get maced.’ ”

I appreciate the candor of the student in quote number 3. As to students 1 and 2, what can I say. I assume they don't major in logic.

Irrelevant?

Randy Barnett does not allow comments on his posts, so I'll have to use this space to express my befuddlement at his latest, titled "Unpopular?" in an apparent reference to another (fairly reasonable) post on VC by David Bernstein. Randy reprints a celebratory item from the Weekly Standard about the victory in Ohio of a ballot measure stating that "In Ohio, no law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system." The item admits that the initiative will have no legal effect (I know some have argued it will actually have negative effects with respect to the operation of other health laws, but I'll put that to one side here), but champions it as a "message" measure. (I had thought many current politicians and citizen activists had said they were tired of "messages" and wanted actual results, but I'll leave that to one side as well.) The item notes that high margin of success of the measure. Randy then adds:

This in the same election that unions spent millions in a successful bid to repeal the Republican restrictions on the collective bargaining rights of public sector unions.

A lot of this confuses me, especially the "This."

Does he mean "in a liberal state?" Ohio is a swing state, not a liberal one, with a Republican governor. If he just means "this, in a state that repealed the governor's restrictions on public sector collective bargaining rights," what does the relative unpopularity of one law have to do with the relative unpopularity of another? If Ohioans love tangerines with breakfast but hate it when people cut in line at movies, does that tell us something useful?

And what's with the one-sided reference to money? Is he suggesting that the voters were cozened by the manipulative efforts and heavy spending of the unions? If so, I have a story to tell him about gooses and ganders; as his blogmate Ilya could tell him, voters who can be cozened by one group on one question can certainly be cozened by another group on another question. Is there a reason that he mentions spending in one measure, and lays it at the feet of "unions," without mentioning anything about spending or sources of funding in the other measure? If so, why? One reason might be that he believes the claims of the supporters of the healthcare nullification measure that they are a simple grassroots effort. That could be true, for all I know (the pro-nullifcation group didn't seem to have spent much yet in the last campaign finance filing I could find), or it could be false (especially if there was substantial "independent" spending on ads and other materials by other groups). That leads to the other possible reason: that he simply doesn't know. I did my best to hunt for information about the sources of funding of the pro-nullification advocates, and came up a blank; the web page for one group is no longer operative and the web page for the other is vague at best about where its money comes from, so we'll have to wait for the next campaign finance filing to know more.

It seems to me that a post written in a reasonably scholarly, or even journalistic, way would have discussed all of this, at least to some degree, and would have avoided making claims of some connection between the two measures unless more information were available. It would have acknowledged a lack of equal knowledge about the sources of funding of both groups. It would have been more nuanced than suggestive. It might even have noted that some argued that the nullification measure was worded vaguely in order to garner voter support (the title of the ballot provision says it is designed to "preserve the freedom of Ohioans to choose their health care and health care coverage"), might have confused some voters, and might not be a very good gauge of actual public sentiment in Ohio on the federal healthcare law, let alone its particulars.

Of course, there are arguments about whether a scholar is obliged to meet scholarly standards in all situations. It's Randy's blog and Randy's choice. But I suspect I was not the only one who came away from his post confused about its purpose and fairness, and convinced it was more of a press release or set of talking points than a thoughtful blog post by an academic with substantial knowledge of the issue under discussion. Too bad.

The False Promise of the Action-Inaction Distinction as to the Constitutionality of Health Care Reform

Inspired by the D.C. Circuit decision this week, I thought I'd say a word about the constitutionality of the Affordable Care Act. There has been so much blogging about this question, that I apologize if someone else has already made this point. Moreover, to give credit where credit is due, this post is the outpouring of a conversation between Einer Elhauge, Mark Hall, and myself when Mark presented at our health law workshop.

The action/inaction distinction has captured the mind of many people who are debating the constitutionality of the individual mandate. I want to suggest why it has drawn so much attention, and then suggest that this is in error. The real question is a search for a limiting principle. Can the government make you eat broccoli as it is sometimes put (though more correctly perhaps it should be said “buy” broccoli not eat it... the mandate requires no one to consume health care, just to have health insurance to pay for it if they want it.) The action/inaction distinction is thought of as being a possible limiting principle. But, in fact, it is not, because the government could always achieve nearly identical results by conditional mandates.

Conditional on ever having consumed health care in the last 10 years, you must have health insurance (or buy broccoli).

Conditional on having bought groceries in the last 10 years, you must buy broccoli (or health insurance)

Conditional on engaging in any interstate commerce, you must buy health insurance (or buy broccoli).

To people who are troubled by the ACA, these examples of hypothetical mandates remain just as troubling even though they are regulating commercial action not inaction. That suggests that the activity/inactivity line itself is not a useful limiting principle, and is actually more of a red herring in this debate.

Wednesday, November 09, 2011

Law School Hiring, 2011-2012, Thread Two

We invite those on the market to leave comments on this thread regarding whether they have received:

(a) a callback from a law school and/or accepted it; or

(b) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level or the lateral market.

Miscellaneous:

1. If you don't want your contact information displayed, enter anon@anon.edu or something like that as an email address.

2. Members of hiring committees, if you see something incorrect in the comments (e.g., someone says they have an offer at your school, but you haven't made any offers), please email me directly, slawsky *at* law *dot* uci *dot* edu, and I will delete or amend the comment and adjust the spreadsheet, and if the person at that IP address persists in posting incorrect information, I will block the IP address.

3. All information should come in through the comments. Our aggregator will use a spreadsheet to aggregate the information. Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below.

Please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.

Good luck!

Additional Links:

There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)

First Amendment Stories: "You Know . . . For Kids!"

Rick has already posted about this, but I'd like to add my two cents. I received a copy yesterday of the just-published collection First Amendment Stories, edited by Rick and Andy Koppelman and published by Foundation Press. It's terrific, in my opinion. Of course, the best thing in it is the insightful and occasionally hilarious piece on Santa Fe Independent School District v. Doe. That aside, there is a lot to appreciate about it. Rick and Andy have a lovely introduction. More important, the "stories" themselves add a lot of value to anyone thinking about the central First Amendment cases discussed therein, including plenty of interviews with key figures in those cases. They include many famous cases, a number of lesser-known cases, and some non-cases, like a discussion by Geoffrey Stone of the Alien and Sedition Acts.

I meant what I said about the "for kids" part. (That line also applies to hula hoops, as cineastes will recognize.) This would be a valuable supplement for standard First Amendment courses, and it does a great job of including both speech and religion cases. Each story does a good job, in my view, of placing these cases within a broader context as well as offering helpful details on the cases themselves.

While you're at it and shopping for Christmas etc. gifts, you might as well go ahead and order a copy of this as well. Baby needs a new pair of Octobans.

Seven-Sky's Influence on the Court

I'd like to pick up on Steve's post from earlier today about the influence of Seven-Sky, the ACA case, on the Supreme Court. Part of the first-round of reaction to the DC Circuit's opinion seems to be that the opinion makes it less likely that the Court will strike the law down. At least one statement to this effect seems to be phrased as a matter of prediction rather than persuasion -- i.e., it's not that the appellate court's opinion is necessarily likely to persuade any particular justice as much as the opinion functions as a clue into the thinking of what that article calls "conservatives legal minds" [sic].

But the possibility that a lower court opinion could be especially persuasive to the Court got me thinking. Are there examples where it's been established that a particular lower court opinion was so persuasive that it carried the day at the Court? I know sometimes justices will say something like "for the reasons expressed by the lower court I would affirm that court's judgment." But are there examples of Supreme Court opinions analyzing cases in ways that essentially track the opinions of the lower court in that case? Does it happen more with specialized courts -- e.g., Federal Circuit opinions? Or with particularly influential or well thought-of lower court judges? Maybe people have studied this effect; if so, I'd love to hear about the findings.